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Last week, I wrote about a great piece submitted to Minding the Campus by FIRE Co-founder and Board of Directors Chairman Harvey Silverglate and Program Associate Kyle Smeallie regarding the Department of Education’s Office for Civil Rights’ (OCR’s) recent policy guidance to colleges and universities that has been making so many waves amongst those of us who care about freedom of speech and due process in higher education.

Harvey and Kyle’s piece captured much of what concerns the many commentators who have spoken out in opposition to OCR’s April 4 "Dear Colleague" letter, as well as OCR’s investigation of Yale University for allegedly maintaining a sexually hostile environment. In their piece, Harvey and Kyle highlighted the many individual rights concerns raised by OCR’s investigation regarding the Delta Kappa Epsilon (DKE) fraternity at Yale, and by the university’s quick capitulation to the investigation in the form of a five-year suspension handed down against DKE.

Several commentators have picked up on Harvey and Kyle’s piece. Jeffrey Hadden of The Detroit Newswrites that OCR "has launched an attack on the civil rights of college students" and adds:

Some commentators have observed that the letter essentially requires colleges to maintain anti-harassment speech codes that will not pass constitutional muster. That’s plenty bad. Even worse is the section dealing with sexual assault cases that are not only violations of campus rules, but also serious felonies.

My first question is whether campuses should pursue their own investigations of felonies at all. They are nowhere near as well equipped as detectives, prosecutors and criminal defense attorneys carry out such investigation.

Yet the letter from the Education Department requires that they do so. This could lead to serious violations of the civil rights of students accused of serious crimes.

Arguing that OCR has "put colleges in the position of being required to trample a student defendant’s civil rights," Hadden uses the well-known example of the Duke lacrosse case to illustrate the complexity and difficulty of prosecuting matters of alleged sexual assault and rape on college campuses:

This is not to condone sexual abuse. Student rapists should be brought before the criminal justice system and punished. And, as the FIRE authors note, the Education Department letter properly encourages college authorities to have crime victims file complaints with the police.

Still, even the police and prosecutors can bungle a rape charge. True victims can have their cases improperly dismissed. And defendants can be innocent of the charges.

A recent spectacular mess was made both by Duke University, whose faculty rushed to judgment when several members of is lacrosse team were falsely accused of rape, and criminal justice authorities. The university covered itself in ignominy, the local district attorney was ultimately disbarred for lying to the court and withholding evidence and the false rape accuser is now awaiting justice on a subsequent murder charge.

If the police and criminal justice system can occasionally mess up a case, how much more likely is it that academics will do so – especially if those who are accused in a campus hearing can’t defend themselves?

Very well put. I would like to know how OCR, and institutions such as Yale that are going along with the agency’s policy guidance, would answer this question. Unless there is a principled answer that they have been hiding behind closed doors all this time, my guess is that there isn’t a satisfactory response out there.